How Did West Bengal Perform in the ‘Firecracker Ban Test’ amid COVID-19?

On 5 November 2020 a division bench of the Calcutta High Court directed West Bengal to ensure that there is no use or display or bursting of firecrackers at all during the Kali Puja and Diwali celebrations in light of the COVID-19 pandemic and rising level of air pollution in the state. The court observed in unequivocal terms that “only wax or oil based diyas would have to suffice, for the greater good of the citizens and in the larger public interest.”^[i]

On 11 November 2020 the Supreme Court of India took note of the seeming contradictions associated with the firecracker ban—individual’s freedom to celebrate the festival of Diwali unhindered qua the high risk posed to public health through poor air quality and COVID-19 infection.^[ii]  The apex court paid due deference to the high court’s firecracker ban and observed that: “Of course, festivals are an important part of our culture. But we are in the middle of a pandemic. There can be no greater value than the preservation of life. We understand this may involve hardship. But, look at COVID-19 affected people in hospitals, elderly people, etc. Can anyone step out of the house in Calcutta, Delhi or any other part of the city today?”^[iii]

A study conducted by Harvard University; United States linked air pollution with higher COVID-19 death rates.^[iv] The study found that those who lived in areas with high levels of air pollution were more likely to die if they got infected by COVID-19 than those who lived in areas with lower pollution levels (Wu et al 2020). This would make the situation very difficult for India and its people (Saaliq 2020).

Among the 13 states in India that had imposed a complete prohibition on the sale and use of firecrackers during the festival of Diwali,  West Bengal reported a marked success in implementing the ban.^[v] The Government of West Bengal had issued verbal advisories banning the use of all kinds of firecrackers in view of the pandemic and to protect the air quality so that the respiratory problems that arose as a result of the infection were not aggravated because of the noxious fumes brought about by the use of firecrackers (Anasua Bhattacharya v State of West Bengal and Others).

Chairperson of the West Bengal Pollution Control Board (WBPCB) Kalyan Rudra testified: “[T]his was the cleanest Diwali in Kolkata since 1997, thanks to judicial orders, people’s awareness and proactive enforcement” (Bandyopadhyay 2020). The city’s average Diwali Air Quality Index 2020 was "moderate" as compared to the previous years—"poor" in 2015 and 2016; "satisfactory" in 2017; "very poor" in 2018; and "poor" in 2019.

At this juncture it is pertinent to analyse what made a social regulation like the firecracker ban in West Bengal a success story such that it may be replicated by other states which are striving hard to curb air pollution levels and arrest rising pandemic cases amidst a festive season.

Teubner’s ‘Regulatory Trilemma’

German sociolegal theorist Gunther Teubner in his concept of "Regulatory Trilemma" has explained the limitations of a linear regulation and its implementation that bears no reference to the prevailing politics and social realities. Such a regulation, Teubner reasoned, suffered from the defects of “incongruence” of law and society, or “overlegalisation” of society, or “over-socialisation” of law. Australian scholars of law and regulation Christine Parker and John Braithwaite have further classified Teubner’s trilemma into three overarching objectives that every regulation should strive to attain—effectiveness, responsiveness and coherence (Parker andBraithwaite 2005).

As explained by Teubner, Parker and Braithwaite, a regulatory decision of the government would be rendered wholly irrelevant if it suffers from any one or more of the following three flaws:

First, if the target population has inherent disregard for the regulatory intervention, then it is a failure. Such behaviour, according to Parker and Braithwaite, if exhibited by the public would raise serious questions on the effectiveness of the regulation. As such, the question that arises at this point is, how effective was the West Bengal government’s firecracker ban?

Second, when the regulatory intervention tries to reshape or redesign the target population’s desirable social practice to the extent of destroying or subverting it. As such, Parker and Braithwaite reasoned that an intervention must be extremely responsive to the target population’s belief system and associated practices and must seek to preserve them as much as possible. The questions that arise are: How responsive was the firecracker ban to the residents’ freedom and choice to celebrate the festival of Diwali like in the past years? Or did the ban completely destroy Diwali celebrations in the state?

Third, when the target population comes to exercise undue proximity or influence over the regulation, thereby diluting and rendering the intervention redundant. In order to be taken seriously, according to Parker and Braithwaite, coherence of the regulatory intervention should not be compromised. Then, the questions that arise are: How well was the firecracker ban conceived? How far was the ban able to address the two issues at hand, that is, rising air pollution levels and the increasing COVID-19 cases in the state.

 It is pertinent to examine the firecracker ban on the basis of Teubner’s Regulatory Trilemma and Parker and Braithwaite’s three principles to check whether they passed the tests of effectiveness, responsiveness and coherence.

Firecracker Ban Was Effective

To answer the "effectiveness" question, attention must be drawn towards the following factors: the extent to which the residents complied with the firecracker ban; the reason why they complied or disobeyed; and how the state administration and residents constructed the meaning of the compliance with the firecracker ban.

The state residents displayed a rarely found enthusiasm for restraint to buy and burst firecrackers on the occasion of Diwali unlike the past years. The firecracker ban was not flouted because Kolkatans unanimously regarded the firecracker ban as extremely valuable as well as absolutely necessary to curb air pollution and to arrest the spread of COVID-19 (Chakraborti andYenghkom 2020). The firecracker ban was not like most laws that are merely put in the books without being effectively enforced. The almost full compliance with the firecracker ban, barring a few incidents of defiance, was not just commendable but a rarity in the discourse of regulatory compliance.^[vi]

Generally speaking, when it comes to regulating "pleasurable habits" or social practices, it is often seen that the state administration adopts a realistic approach and expects a level of "optimal compliance" from the citizens rather than a full 100% compliance (Fletcher 1996). A 100% compliance level is an optimistic expectation for sure but wholly unrealistic and unachievable. To that extent, residents as well as the state administration have both defied the "optimal compliance" assumption with respect to the firecracker ban.

The state allocated adequate resources, applied political wisdom and exercised leadership to monitor and enforce the firecracker ban effectively. The Chief Secretary Alapan Bandyopadhyay stated a day before the high court’s order that “[w]ith everybody's cooperation, we want to hold the Kali Puja and Diwali festivals avoiding firecrackers. The administration appeals to people to avoid firecrackers” (Basu 2020).

The Kolkata Police kicked off its anti-fireworks campaign and developed strategies after mapping the spots that have a history of maximum air and sound pollution on Diwali in the last five years (Banerjee and Ghosh 2020). The police dispatched its "dos and don’ts" advisory to gated communities; put up posters and notices; held meetings with the residents’ welfare associations; and made announcements informing the residents of the firecracker ban.

The Kolkata Police and the WBPCB installed their own firecracker related hotline numbers to receive complaints from the state residents (Anasua Bhattacharya v State of West Bengal and Other). Civic volunteers were deputed at Kali Puja pandals to ensure compliance with the firecracker ban and COVID-19 social-distancing norms. Patrol vehicles like police control room vehicles, heavy radio flying squad, motorbike squads and autos for chase and prosecution purposes crisscrossed the state on Diwali and special teams of cops were deployed at specific locations to effectively implement the firecracker ban.

Evidently, it was the collective conscience of the city residents coupled with the grit of the West Bengal government and judiciary that transformed the firecracker ban into an effective piece of regulation.

Firecracker Ban Was Responsive

In order to check the responsiveness of the firecracker ban the following points must be considered: practicality of compliance with the ban; and the extent to which the objectives behind the ban and the methods of implementation fit with the social practices.

The firecracker ban had democratic moorings and was not divorced from the concerns, values and social milieu of the public. The festival of Deepawali is celebrated across India to commemorate Lord Rama’s return to Ayodhya after defeating the demon king Ravana and completing 14 years in exile. It is essentially marked by the lighting of earthen lamps and diyas that signifies the victory of light over darkness and knowledge over ignorance (Ghosh 2019).

Both Valmiki Ramayana and Tulsidas’s Ramcharitmanas mention that the people of Ayodhya welcomed Lord Rama with great pomp and gaiety by decorating the city and their homes with flowers and festoons. Conch shells and bugles were blown and aartis were performed. However, it is important to note that firecrackers that have come to occupy an inextricable part of the festival were never burst on the arrival of Lord Rama, Lakshman and Sita. Bursting of firecrackers on the festival of Diwali is a much recent practice (Basu 2020).

The firecracker ban was purposeful as well as rationally planned. The state administration appropriately addressed the two issues of rising air pollution levels and increasing COVID-19 cases in the state. Goddess Kali was worshipped in Kali Puja pandals that strictly adhered to the COVID-19 protocol and ensured that 5 metres distance was maintained between the idol and devotees, as laid down by the high court and state administration. Sanitisers were made available at the puja pandals and wearing of masks was mandatory within and around the pandal area (Anasua Bhattacharya v State of West Bengal and Others). This year, Diwali celebrations went on as usual with the West Bengal residents lighting lamps, candles and decorative electric lights. The only change that one experienced was a very positive one—a smoke-free and noiseless Diwali.

There was a smooth coordination among different arms of the state administration like the WBCPB, Kolkata Municipal Corporation and other local municipal bodies and the Kolkata Police. The WBPCB distributed high-tech GPS-fitted sound monitoring devices to the police to aid in apprehending the violators.^[vii] The high-tech device could easily track and identify the violators as well as produce an on-spot ban-violation ticket. The Kolkata Police reported that close to 300 people were arrested from different parts of the city for violating the firecracker ban during Kali Puja and Diwali.^[viii]

The police carried out raids on traders and seized huge stocks of firecrackers meant for illegal sale (Banerjee et al 2020). Surprise checks were conducted at shops and meetings were held with representatives of the sellers and market committees. Those shopkeepers found selling firecrackers clandestinely were immediately arrested. Multiple checkpoints were created to stop firecrackers from being smuggled into the city from the firework hubs within the state as well as outside.

The state’s initiative to strictly enforce the firecracker ban was complemented with "self-regulation" by the residents. For example, private residents’ welfare associations of building complexes cut off access to the terrace during Diwali to ensure that no firecrackers were burst (Chaudhuri 2020). Notices were issued to the residents intimating them about the punishment for non-compliance with the ban, that is, up to five years imprisonment and Rs 1 lakh fine. Evidently, the firecracker ban and implementation were "morally proximate" to the people and preserved the core essence of their festival. 

Firecracker Ban Was Coherent

In addition to being effective and responsive, a regulatory intervention should also be coherent. The firecracker ban would have to be tested for values like certainty, consistency and predictability. The question is whether the state’s firecracker ban and its implementation upheld regulatory ideals, namely constitutional guarantees, human rights and fundamental legal principles of openness, accountability, proportionality and procedural fairness.

The firecracker ban was clear, well defined and comprehensible. It did not suffer from regulatory ills like vagueness, over breadth and over technicality. The state had made the following points amply clear: first, the attainment of its regulatory objectives like curbing air pollution and arresting spread of COVID-19, would get primacy over other concerns like residents’ freedom to burst firecrackers and the freedom of traders to carry on their trade in fireworks; and second, that firecracker ban meant an absolute prohibition of the sale, purchase and use of all kinds of fireworks.

Further, the Calcutta High Court also declared in unequivocal terms that the ban included “all types of sparklers and the like, whether or not the use or burning thereof involves any sound or light being generated.” Thisclarified matters beyond any doubt.

Moreover, the high court through its order dated 10 November  2020 made the District Magistrates and Superintendents of Police of every district and the Commissioner of Kolkata Police personally accountable if the order for a complete ban on the sale, purchase and use of firecrackers was breached. As such, while being responsive to the peoples’ freedom to celebrate the festival of Diwali, the firecracker ban did not lose its purpose or teeth in the process. It did not get diluted to the point of redundancy.

The high court acknowledged the sad reality that the firecracker ban would impact the livelihood and business interests of manufacturers, traders and shopkeepers across the state.^[ix] However, in light of the rising air pollution levels and the deadly pandemic situation, the court upheld the state’s decision to completely prohibit the sale, purchase and use of firecrackers and reasoned as follows: “For the greater good, a small number of persons involved in the firecracker business may have to suffer losses. The overwhelming public interest cannot be compromised.” As a result, many firecracker sellers in the state changed their stock to candles, diyas, decorative lights and idols of Goddess Lakshmi and Lord Ganesha (Javed 2020).

West Bengal is obligated to remove air pollution which may be detrimental to the quality of life of its residents. The Supreme Court of India in the case of Subhash Kumar v State of Bihar, held that the right to life is a fundamental right under Article 21 of the Constitution of India and it included the right of enjoyment of pollution free air for full enjoyment of life.^[x] Reasonably, the state was justified in imposing a complete ban on the sale, purchase and use of firecrackers because it endangered and impaired the quality of life of its residents in contravention of Article 21.

Conclusions

West Bengal has through its firecracker ban carved a new and expanded meaning of regulation in India; one befitting a replication by other states too. Regulation is customarily believed to begin and end with legislative enactment. Not anymore. The handling of the firecracker ban by the West Bengal administration is probably one of the best examples of how the "high" and "formal" politics of regulatory enactment is transformed into the "low" and "substantive" politics of the regulation in action: what do regulators like WBPCB and state actors like municipal corporations and police do; the monitoring and enforcement strategies they ideate and implement; how the residents view and respond to the enforcement; and how do residents negotiate compliance.

The pandemic has offered a unique opportunity to the governments of the world to put to test their political acumen, preparedness and popularity in times of crisis. By successfully ensuring compliance through not just threat of punishment but cooperation as well, the Government of West Bengal has opened new avenues of exploring the practice of performing regulation in India.